WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Fırat Plastik Kauçuk, San. ve Tic. A.Ş. v. Fırat Soğancı, SoMedia
Case No. D2015-1638
1. The Parties
The Complainant is Fırat Plastik Kauçuk, San. ve Tic. A.Ş of Istanbul, Turkey, represented by TURKTICARET.Net Internet Hizmetleri A.S., Turkey.
The Respondent is Fırat Soğancı, SoMedia of Berlin, Germany.
2. The Domain Names and Registrar
The disputed domain names <fırat.com> and <fırat.net> are registered with RegistryGate GmbH (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the ”Center”) on September 16, 2015. On September 16, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain names. On September 17, 2015, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details.
The Center verified that the Complaint the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).
In accordance with the Rules, paragraphs 2 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on October 2, 2015. In accordance with the Rules, paragraph 5, the due date for Response was October 22, 2015. The Response was filed with the Center on October 21, 2015.
The Center appointed Theda König Horowicz as the sole panelist in this matter on October 28, 2015. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.
The Complaint was submitted in English. The Registrar identified German as the language of the registrant agreement. The Center invited both parties to submit requests regarding the language of proceedings. On September 24, 2015, the Respondent submitted a request to proceed in German. No submission from the Complainant was received. The Center proceeded in both English and German.
4. Factual Background
The Complainant is a Turkish building materials manufacturer which started its activities in the field of plastic building materials in 1972.
The Complainant owns the following registrations for the trademark FIRAT:
- Turkish Trademark Registration No 138856, in international class 17, of January 14, 1982;
- International Trademark registration No 925 645, in international classes 17, 19, 20, of April 4, 2007 which covers notably Germany.
The Complainant holds the domain names <firat.com> which directs to its official website.
The Respondent registered the domain name <fırat.com> on April 29, 2004 and the domain name <fırat.net> on May 4, 2015. Both names are linked to a parking page.
5. Parties’ Contentions
The Complainant alleges to have trademark rights over the name FIRAT since 1982, date of its registration in Turkey. The Complainant explains that since its creation its name FIRAT was actually written and spelled with the Turkish “ı". Since this non-ASCII character was not available on the Internet prior to 2003, the Complainant replaced it for its business into an “i” and registered the domain name “firat.com” which directs to its website. Later the Complainant registered the domain name <fırat.com.tr>. The Complainant estimates that the disputed domain names entirely incorporate its trademark FIRAT and that they are therefore confusingly similar.
The Complainant indicates that the Respondent has no legitimate interest in the disputed domain names as they are not active. Furthermore, the Complainant doubts the fact that “Firat” is the real first name of the Respondent.
The Complainant contends that the disputed domain names were registered in bad faith for the purpose of being sold to the Complainant or to any other interested third party. In this regard, the Complainant refers to email exchanges with the Respondent which took place from June 6, 2015 on the Respondent’s initiative and which resulted in an offer from the Respondent to sell the domain names to the Complainant for the amount of EUR 17,000.
The Respondent alleges that his rights over the name FIRAT are prior to the Complainant’s trademark registration of 2007 as he already registered the domain name <fırat.com> in 2004. He also confirms that his first name is indeed Fırat as evidenced by his passport. He underlines that Firat is a common first name in Turkey, that it also designates the Euphrat river and that many companies in Turkey have FIRAT contained in their business name.
The Respondent states that bearing the first name Fırat, he has a legitimate interest in the disputed domain names.
The Respondent denies the allegations of the Complainant with regard to bad faith. In particular, he indicates that he did not offer the domain name <fırat.com> for sale during all the 11 years he has been its holder. He mentions that discussions were actually started by the Complainant in 2014 as they wanted to acquire <fırat.com>. He alleges that on June 6, 2015 he made them aware in good faith of the fact that he was receiving emails to the Complainant’s attention after the creation of an email address based on the domain name <fırat.net>. He reiterates that it is actually the Complainant who approached him in 2014 and made later on, in January 2015, the first offer to acquire the domain name <fırat.com> for the amount of USD 2,000. This brought the Respondent to make later on a counter-offer of EUR 17,000.
6. Discussion and Findings
I. Language of the proceedings
Paragraph 11(a) of the Rules provides that unless otherwise agreed by the Parties, or specified otherwise in the Registration Agreement, the language of the administrative proceedings shall be the language of the Registration Agreement, subject to the authority of the Panel to determine otherwise, having regard to the circumstances of the administrative proceeding.
In the present case, the Complainant is based in Turkey, the Respondent in Germany and the Registrar in Germany. The registration agreement is in German.
The Panel having regard to the circumstances of the administrative proceeding, considers that it is not necessary to request that the Complaint be formulated in German, since the Respondent was obviously able to understand and take position on all arguments raised by the Complainant in English. Having the Complaint translated into German by the Complainant does not therefore appear necessary or efficient, see WIPO Overview of WIPO Panel Views on Selected UDRP Questions Second Edition (“WIPO Overview 2.0”), paragraph 4.3.
On the other hand, it has to be noted that the Complainant did not react to the Center’s notification with regard to the language issue. The Complainant did also not react when the Respondent filed its Response in German which shall therefore be accepted as such without being translated into English.
Under the circumstances, the Panel finds that English shall be the language of the present proceedings but accepts the Response in German without having it translated into English.
II. Substantive issues
Under the Policy, in order to prevail, a complainant must prove the following three elements for obtaining the transfer of a domain name:
(i) that the domain name is identical or confusingly similar to a trademark in which the complainant has rights;
(ii) that the respondent has no rights or legitimate interests in the disputed domain name; and
(iii) that the domain name has been registered and is being used in bad faith.
A. Identical or Confusingly Similar
The Complainant demonstrated trademark rights in FIRAT.
It is not relevant when examining the first element to determine if these rights are prior or not to the domain name registration.
In any event, it must be underlined that the Complainant could show to have rights in the name FIRAT since 1982 as this is the date of its trademark registration in Turkey for the said name, that is before 2004 when the domain name <fırat.com> was registered by the Respondent.
The trademark FIRAT is reproduced in its entirety in both disputed domain names.
There is actually only a slight difference between the Complainant’s mark and the domain names in dispute considering the fact that the domain names contain a non-ASCII character which does however not have a great influence in the present case.
Under the circumstances, the Panel concludes that the disputed domain names are identical or confusingly similar to the Complainants’ mark.
The condition required under paragraph 4(a)(i) of the Policy is thus fulfilled.
B. Rights or Legitimate Interests
Under the Policy, the Complainant must show a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain names. The burden of production then shifts to the Respondent.
In the present case, the Respondent pointed the disputed domain names to a parking page which does not contain any specific commercial element. In particular, it is not mentioned on the said parking page that the domain names are for sale.
The Complainant’s line of arguments merely relies on the fact that there is no evidence that the Respondent’s first name is indeed Fırat and that there is no evidence of fair use or demonstrable preparations of use for both disputed domain names.
The Respondent on the other hand showed sufficient evidence as to indeed bear Fırat as a first name. He did not however give any explanations on his plans with regard to the use of the disputed domain names, bearing in mind that he registered the domain name <fırat.com> in 2004 already.
The question which has to be discussed is whether the Respondent can have legitimate interest even though he did not show any intention to use the domain name at issue, for more than 10 years as far as <fırat.com> is concerned.
In the present case, the Respondent does not provide any explanations for the reasons of his passive holding of the first domain name <fırat.com>. He does neither explain his motives for registering the second domain name <fırat.net>, 11 years after <fırat.com>. The Respondent did not for example provide a business plan, draft content for a potential website which would show his interest in having the disputed domain names.
The Panel is of the opinion in the context of the circumstances of the case discussed in further detail in the next section, that the sole fact that the domain names at issue contain the first name of the Respondent is not sufficient in itself to provide a legitimate interest under the UDRP policy.
The second condition of paragraph 4(a) of the Policy is therefore fulfilled.
C. Registered and Used in Bad Faith
According to the Policy, two conditions have to be fulfilled:
- the disputed domain name was registered in bad faith;
- the disputed domain name is used in bad faith.
The Complainant alleges that the disputed domain names were registered in bad faith with the intention of the Respondent to sell them. The Complainant refers to emails of the Respondent which were sent in June 2015 to this end, that is 11 years after the registration of the domain name <fırat.com>.
The Respondent explained that he has been the owner of the domain name <fırat.com> since 2004 and that he never approached the Complainant. Actually, the Respondent submitted exchanges of emails which demonstrate that the Complainant approached him in 2014 expressing an interest in acquiring the disputed domain name <fırat.com> and then later, in January 2015, proposed him to acquire it for USD 2,000.
Furthermore, the Respondent has evidenced that Fırat is his first name, that it is a name used by several business entities in Turkey and that it also designates the Euphrat river.
The Panel notes that the Complainant did not provide any evidence which would show the bad faith registration of the <fırat.com> domain name by the Respondent, in particular not the email exchanges with the Respondent it refers to in the Complaint.
Under the circumstances, the Panel comes to the conclusion that the Complainant has failed to meet its burden to establish bad faith registration with regard to the domain name <fīrat.com>. Given the long period of registration without action by the Respondent to make bad faith use of the domain name <fırat.com>, and the other plausible reasons asserted by the Respondent for the good-faith registration of the disputed domain name, the Panel finds that the Respondent on balance did not register <fırat.com> in bad faith.
The situation is however different for <fīrat.net> which was registered in May 2015.
As a matter of fact, according to the record, the Respondent registered this disputed domain name after he was approached by the Complainant in 2014 with regard to <fīrat.com>.
At this point, the Respondent was made aware of the Complainant’s prior rights and interest for the domain name <fırat.com>.
Despite this fact, he proceeded with the registration of <fırat.net>, without having any specific project of use.
The chronology of the facts presented to the Panel convinces it that the Respondent most likely registered the second disputed domain name to increase the price offered by the Complainant for the first domain name which is evidence of the registration and use of the domain name in bad faith
Under the circumstances, the Panel finds that the Respondent’s offer to forward messages intended for the Complainant at the Respondent’s email address to be a pretext for further negotiation for the sale of the disputed domain names.
In the light of the above, the Panel finds that the third criteria under the Policy is fulfilled for <fırat.net>, but not for <fırat.com>.
For the foregoing reasons, in accordance with the paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name <fırat.net> be transferred to the Complainant.
The Complaint is denied for <fırat.com>.
Theda König Horowicz
Date: November 16, 2015